Nombri v Kadai [2014] PGSC 75; SC1569 (15 October 2014)

SC1569
PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCAPP No. 20 OF 2014

BETWEEN:
AGUA NOMBRI
Applicant

AND:

ROBERT KADAI for and on behalf of 120 other Employees of Lutheran Shipping Madang

Respondent

Waigani: Injia CJ
2014: 10^th, 15^th October

SUPREME COURT – Bail application pending appeal – Appeal against conviction and punishment for contempt – Grounds- Medical conditions, Prospect of success of appeal and Interest of justice - Principles - Exceptional circumstances – Factors to be considered- Constitution, s 146(2), Bail Act Ch 340, s 9(1) &( 2).

Supreme Court- Practice & procedure - Bail application- Form of application must be in Form 4- Supreme Court Rules 2012, O 13 r 15, Form 4.

Cases cited:

Application for Bail by Sergeant Pokou Steven & Others v. The State (1997) N1641
Denden Tom v The State (2004) N2716
Denden Tom v The State (2007) SC 914
Enuma & Others v The State ( 1997 ) SC 538
Francis Kensi Pele v The State [2000] PNGLR 100
Fred Keating v The State [1983] PNGLR 133
Jacob Wama Kelewali v The State (2003) N2716
Jaminan v The State [1983] PNGLR 722
Joe Parakas & Kuku Hayara v The State (2008) N3488
(Makail J),
Martin Abel v The State (2009) N3488
Mataio v The State (2004) SC 865
Paul Olape v The State ( 1999 )N1890
Rolf Schubert v The State [1978] PNGLR 394
State v Wiri Siminz (2010) N4062
Smedly v State [1978] PNGLR 452
The State v Yabara (No. 1) [1984] PNGLR 133

Legislations & Subordinate legislations referred to:
Constitution
Bail Act Ch 340
Supreme Court Rules 2012 (Consolidated)

Counsel:
A Daugl, for the Applicant
Y Wadau, for the Respondent

15^th October, 2014

1. INJIA CJ: This is an application for bail pending appeal against conviction and punishment for contempt of Court imposed by the National Court sitting in Madang made on 26^th September 2014. An appeal in proceedings SCA No. 16 of 2014 was lodged two days later. This application is a separate proceeding brought and not brought by way of an interlocutory application in the existing appeal.
   

Form of Bail Application

2. There is an important aspect of the practice and procedure employed in bringing an application for bail before the Supreme Court that affects due process and fair play that requires clarification.
   
3. The application for bail is brought under s 11 (c ) of the Bail Act Ch 340 and s 10 (1)(b) of the Supreme Court Act. It is brought before a single judge of the Supreme Court. The form in which the application is brought is not provided in the Supreme Court Rules 2012 (Consolidated to Amendment No. 1 of 2013) (SCR). It is common practice for practitioners to bring such applications by way of a fresh proceedings using SCR, Form 4. This Form is also used to bring interlocutory applications for bail in existing appeals by virtue of SCR, O 13 r 15.
   
4. The original application in this case was brought by way of a separate application and assigned the case code reference SCAPP No. 20 of 2014 by the Registrar: see SCR, O 13 r 3 (3). It was not brought by way of an interlocutory application in the existing appeal: see SCR O 13 r 15.
   
5. The original application states:
   

“ Bail Application

Take notice that the above-named Applicant will on the ... day of .... 2014, at am/pm move the Honorable Court of Justice for the following orders, that:

1. The Applicant be released on Bail pending completion of his appeal pursuant to Section 11 (c ) of the Bail Act Chapter 340.
2. Any other orders as the Court sees fit.”
   

Dated this... day of.... 2014.

(signed, Lawyer for the

Applicant)”

6. This form of application did not conform with the requirements of Form 4, which amongst other things, requires the grounds of the application and the affidavits to be relied upon to be expressly stated in the application. Such are important requirements designed to afford natural justice and fair play. Such information give early information and notice to the Court and the respondent what the application is about, the judicial relief claimed, the grounds on which that relief is claimed and the material relied upon to support the prayer for relief. An application for bail of the type filed here that lacks those important information leaves the Court and the respondent left wondering what the case is about and come hearing time, makes the Court and the parties to laboriously sift through the evidence accompanying the application to ascertain those information and in the process waste valuable time. The Form is designed to bring about due process and fair play in the hearing and judicial determination of the application. Those principles are fundamentals of good practice and courtroom advocacy that underpin the fairness of the judicial process.
   
7. For this reason, this Court declined to entertain the bail application in the for it was made and directed an amendment to the application to conform with Form 4. An amended application was filed and served on the respondent.
   
8. The amended application for bail states:
   

“Amended Bail Application”

Take notice that the above-named Applicant will be made to a Judge of the Supreme Court, Waigani at 1:30...pm on the 10^th day of October 2014;

1. The Applicant be released on Bail pending completion of his appeal pursuant to Section 11 (c ) of the Bail Act Chapter 340.
2. The Grounds of the Application are as follows:
   

Personal Medical Condition

(i) The Applicant has medical reports that support that he is sixty (60) years old and is suffering from several chronic stress related illnesses. The sentence of six (6) months imprisonment for contempt has a high likely chance of aggravating his medical conditions given the stressful conditions in custody. Therefore, he needs to be released on bail in order to receive proper medical treatment and observe strict dietary restrictions.

Prospect of Success of Substantive Appeal (SCA No.126/14):

(ii) An appeal (SCA no. 126/14) was filed against the decision of his Honour Justice Cannings against the Applicant’s conviction. The grounds of the Appeal are numerous and most of the grounds are very strong and meritorious, hence, the prospect of success of the Appeal is very high.

Interest of Justice:

(iii) It seems apparent that if the Applicant is refused Bail, then he might complete his jail term prior to the conclusion of his substantive Appeal. In this case the interest of justice will be adversely affected.

3. Affidavits in Support of this Bail Application are sworn by:
   • (i) Agua Nombri dated 27^th September 2014 and filed on 29^th September 2014.
   • (ii) Joe Yama dated 27^th September 2014 and filed on 29^th September 2014.
   • (iii) Rosa Nombri dated 27^th September 2014 and filed on 29^th September 2014.
   • (iv) Martin James dated 27^th September 2014 and filed on 29^th September 2014.
     

Dated this 08^th day of October 2014.

(Signed, Lawyer for the Applicant”

9. When the matter returned before me I was satisfied that the amended application conformed to the requirements of Form 4 and proceeded with the hearing.
   
10. In compliance with the requirements of the rules of Court and as a matter of good practice, bail applications filed in the Supreme Court should be filed strictly in accordance with SCR, Form 4, with regard to a fresh application for bail or interlocutory applications brought in an existing appeal. At the hearing, the case for the applicant should be conducted in the confines of the grounds stated in the application.
    

Law on Bail applications

11. The right to bail is protected by the Constitution and it is available to persons charged, tried, convicted and punished for an offence in Papua New Guinea. A person charged and tried for a criminal offence has a right to be granted bail: Constitution, s 46(2). The right to bail is associated with the right to presumption of innocence. The question whether bail should be granted in a particular case is in the Court’s discretion and that discretion is exercised on proper ground and circumstances. The grounds upon which bail may be refused are those set out in s 9(1) of the Bail Act. The applicant bears the onus of establishing a case for the exercise of that discretion in his favour. The burden of persuasion rests with the respondent, which in most cases is the State, to show the existence of any one of those grounds under s 9 (1) the Bail Act in order for bail to be refused.
    
12. The right to bail is lost when a person is convicted and sentenced to imprisonment. The onus is on the applicant to show exceptional circumstances exist to justify bail. The applicant bears the overall burden of persuasion, to show that exceptional circumstances exist to warrant bail. The standard of persuasion is high compared to what the respondent must show. The respondent must show reasonable grounds exists for refusal of bail under any of those criteria set out in s 9 (1) of the Bail Act.
    
13. The principles on bail relating to ordinary criminal appeals are settled. The applicant must show exceptional circumstances why bail should be granted. Where particular circumstances are relied up, it must be shown that the circumstance is "exceptional" or of an “extra - ordinary” nature. As to what facts constitute exceptional circumstances depends on the circumstances of each case. Leading cases on point are Smedly v State [1978] PNGLR 452, Jaminan v The State [1983] PNGLR 722, The State v Yabara (No. 1) [1984] PNGLR 133, Enuma & Others v The State ( 1997 ) SC 538, Mataio v The State (2004) SC 865 and the more recent case of Denden Tom v The State (2007) SC 914. These principles equally apply to bail pending an appeal against conviction and punishment for contempt of court. There is no question that a conviction for contempt of Court is criminal in nature and the applicant must demonstrate exceptional circumstances for the exercise of discretion in his favour.
    
14. With regard to the information and material that may be considered for the purpose of exercising the Court’s discretion, s 9(2) of the Bail Act states:
    

“In considering a matter under this section a court is not bound to

apply the technical rules of evidence but may act on such information as is available to it.”

15. The purpose of this provision is, to allow the Court considering an application for bail, wide discretion to have access to all relevant information in reaching its decision including those supplied by the parties in the form of affidavits. It is the intention of s 9(2) of the Bail Act, that the Court should not be hamstrung by technical rules of evidence and procedure that restricts the availability such information to formal documentary affidavits or statements. Apart from relevant information supplied by counsel from the bar table, the Court is free to consider other relevant information that it sees fit.
    
16. Counsel for the parties made detailed submissions which I deal with in my reasons for decision. In essence, the submissions of Mr Daugl of counsel for the applicant were based on the applicants affidavits and affidavits filed by various guarantors. He relied on three grounds that when taken individually or collectively constitute exceptional circumstances and those are as follows:-
    
    • (a) Applicant’s medical condition
    • (b) Prospect of success of appeal
    • (c) Interest of justice
      
17. Mr Wadau of counsel for the respondent opposes the application but did not filed any affidavits. He submits however that the material placed before the Court do not show exceptional circumstances and the application should be dismissed.

18. The application is supported by various affidavits from which arguments were made. Those affidavits include the applicants own affidavit to which is attached two medical reports or noted. The Court’s written judgment on verdict and on penalty, if any, were not attached to any of those affidavits.
    
19. The respondent was given an opportunity to file affidavits in response but chose not to. From these material, read together, there still remains some relevant information regarding , inter alia, the voluntary liquidation of Lutheran Shipping’s parent company Kambang Holdings Ltd. Those materials could have been made available to this Court by way of affidavits. Mr Wadau was able to fill me on some information in that respect from the bar table which has assisted me. Also, at the conclusion of arguments and upon my request, Mr Wadau was able to furnish to the Court a copy of the trial judge’s judgment on sentence.
    
20. Further, Mr Wadau mentioned an increasing trend developing in this country amongst litigants with regard to disobedience of Court orders that is seriously undermining respect for judicial independence and the Court’s authority which I think is an important consideration to be taken into account. The Court requires no formal evidence to support such assertion because the Court itself would be aware of such developing trends. The fact that a lawyer, an officer of this Court with years of experience of practice in the high Courts of this country of the likes of Mr Wadau is able to offer information regarding developments in Court practices that is enhanced by its own observations and experiences on these matters, is useful to the Court and from which the Court should draw its own conclusions.
    
21. In cases such as the present where multiple grounds are relied upon as constituting exceptional circumstances, the proper approach is to consider them together and determine whether the totality of those circumstances constitute exceptional circumstances. This is the same approach that the full Court advocated in the two cases referred to me by Mr Daugl: Denden Tom & Ors v The State (2007) SC914 and Rakatani Mataio v The State (2007) SC865. In a case where the prospect of success of the appeal is a ground for bail, it is not an exceptional ground per se; it must be considered alongside the other circumstances of the case: Rakatani Mataio v The State (supra).
    

Consideration of grounds of bail and circumstances constituting exceptional circumstances

22. The applicant is a mature man of 60 years of age. He is well educated and an experienced administrator in business management. He was educated at Queensland University of Technology in Australia and holds a Bachelors degree in Business Studies and also studied at the University of Technology in Electrical Engineering. Since 1997 he has been employed by Lutheran Shipping at its office in Madang. At the time of his conviction, he held the top position as the Chief Executive Officer (CEO), a position to which he was appointed in 2010. The offence was committed in his capacity as the CEO.
    
23. The National Court had issued orders in favour of the respondents in a Human Right Application case that was brought by the respondents. Amongst other orders, the Court ordered the applicant to “ensure that the plaintiffs are paid their wages and salaries on time, without fail, and that if for some reason this cannot happen an affidavit explaining the reasons shall be filed in the National Court immediately..” The Court found that in the period of 30 scheduled paydays, wages and salaries were paid late on 23 occasions. Affidavits were filed explaining the late payments. On 20 occasions the applicant failed to comply with one of the Court orders. In the circumstances, the trial judge was satisfied that the applicant “recklessly or carelessly disregarded the requirement to file an explanatory affidavit on each occasion that the wages and salaries were paid late. These actions were held to be tantamount to a deliberate failure to comply with the order.” The Court also found him guilty of deliberate disobedience of a Court order. The Court found the offence and the instances of disobedience to be serious and imposed a term of imprisonment that it considered appropriate to fit the crime.
    

Medical condition

24. The applicant relies on medical complications he is experiencing as a result of incarceration. The case law on medical grounds as an exceptional circumstance is scarce and the little case law that is there are scattered. From the few cases that have come to my attention, I am able to discern the following principles: An applicant’s medical condition may be an exceptional circumstance, provided it is serious and life-threatening such that his continued incarceration is likely to have a deleterious effect on the applicant and could seriously endanger the applicant’s health or life: Rolf Schubert v The State [1978] PNGLR 394 at 396. The onus is on the applicant to provide corroborative evidence by way of a medical certificate, report or noted, showing serious and deteriorating medical condition: Joe Parakas v The State, Kuku Hayara v The State (2008) N3488 (Makail J), Martin Abel v The State (2009) N3488 (Makail J), Jacob Wama Kelewali v The State (2003) N2716 (Salika J), Denden Tom v The State (2004) N2716. Medical evidence must come from a reputable medical practitioner, either private or public: State v Wiri Siminz (2010) N4062 (Makail J). Evidence of stressful living conditions in jails, though relevant, is not necessary to be provided as this is normally attendant with deprivation of personal liberty through detention. Jails normally provide medical services in collaboration with health authorities. Where lack of medical services at the jail is relied upon, the applicant must provide evidence of lack of medical facilities at the place of detention provided by the jail authorities in conjunction with health services offered by health authorities outside the jail. I apply those principles and observations to the facts of this case.

25. The medical notes of two medical officers produced by the applicant shows that he is experiencing medical complications as a result of some pre-existing illness associated with stress, hypertension and other conditions which may be aggravated by his continued detention. The medical notes suggest that as a result, he is exposed to, amongst other risks, the risk of a brain stroke. In my view, as submitted by Mr Wadau, these sorts of pre-existing physical conditions are associated with one’s lifestyle and advancement in age tend to aggravate those conditions and if one does not care for himself, such complications could lead to serious consequences that could be life threatening. However there is no clear medical evidence to show the applicant's complications are life threatening. I accept that the applicant has medical conditions which require ongoing medical attention. There is also no clear evidence to show if medical treatment cannot be obtained from within the prison or from external sources on prior arrangement with the Correctional Services authority.
    

Prospect of success of appeal

26. Mr Daugl based his submissions on the grounds of appeal contained in the notice of appeal and submitted that the applicant has a very high chance of success. With regard to appeal against conviction, there are several grounds of appeal but it suffices to look at one of the main grounds of appeal that Mr Daugl addressed. That relates to the lack of consent of the liquidator of Kambang Holdings which owns Lutheran Shipping which employed the applicant as its Chief Executive Officer (CEO). The orders were made in a human rights enforcement proceedings that were brought by the respondents. The contempt proceedings were brought separately. The argument is that the consent of the liquidator was required to maintain or institute those court proceedings. He did not refer to any evidence produced at the trial and the trial judge’s judgment on verdict to support his arguments.
    
27. Mr Wadau argued that the human rights proceedings were filed before the company was put to voluntary liquidation and the contempt proceedings were filed after the liquidation was set in motion. The applicant was personally charged for disobedience of the Court orders over a thirty pay- day period and liability attached to him personally. Consent of the liquidator in those circumstances was not required.
    
28. With regard to appeal against sentence, Mr Daugl submitted the punishment was excessive. Given the applicants prior good record and standing in the community and partial compliance with the court orders, a non -custodial sentence was appropriate. He did not refer to the trial judge’s judgment on sentence to support his arguments.
    
29. Mr Wadau submits the sentence was appropriate given the serious nature of the offence and its prevalence.
    
30. It is always difficult for the Court to assess the prospect of success of an appeal from a mere glance at the grounds of appeal, howsoever precise or meticulously pleaded they may be, set out in the notice of appeal. A vital piece of information that should be placed before the Court includes copies of material placed before the judge at the trial and the judgments of the trial judge on verdict and sentence. Mr Daugl’s argument that the applicant has a very high chance of success in the appeal is not supported by any reliable information such as copies of the material put before the judge and the judgments of the trial judge on conviction and sentence. Mr Wadau supplied a copy of the judgment on sentence at the conclusion of arguments upon my request. The applicant did not see the relevance and importance of this piece of information and did not build his case around such information. In the circumstances I am not persuaded that the appellant has a case on appeal that is likely to succeed.
    
31. With regard conviction, on the point raised concerning the consent of the liquidator, there is no material before me to establish the pertinent facts on the point that should enable me to assess the strength of this argument. The onus is on the applicant to produce that material.
    
32. With regard to sentence, the reasons for decision shows all relevant matters, those matters for and against the applicant, were considered alongside the seriousness of the offence and the need to impose a custodial sentence.
    

Interest of justice

33. The “interest of justice” is a broad phrase that everyone know what it means but lacking in precise definition. The phrase can be ascribed different meanings in different contexts and circumstances. Counsel for the parties in this case were unable to offer any precise definition except to rely on specific circumstances that they argued qualify or does not qualify under that phrase.
    
34. It is necessary to give the phrase a specific definition that can then be applied to bail pending appeal against conviction for contempt. I am assisted in that task by a statement that appears in the State v. Heisi Tau (1999) N1937. In that case Sakora J when dealing with an application for bail pending trial referred to the phrase “interest of justice” in the context of the phrase appearing in Constitution, s 46 (2) and said :
    

“In my opinion, the inclusion of those exceptions (to the availing of the right or entitlement) was a deliberate legislative act to ensure that interests of justice is accorded due recognition and consideration, and, where appropriate, held to prevail over the individual rights and interests of the accused person. This would suggest that the criminal laws of the country are to be enforced without exception, and equally, and that those who have (or are alleged to have) offended against society or community’s laws and rules are made to realize that they have forfeited their right to live and move around freely.”

35. I would for now subscribe to his honour’s statement as a useful guide in formulating a similar statement to apply to bail pending appeal that would apply with even greater force. That the criminal law of contempt given to the Courts by Constitution by s 37 (2) to punish disobedience of court orders are to be enforced without exception , and those who are found to have committed the offence of contempt and punished by an order for imprisonment are made to realize that their right to live and move around freely have been forfeited by their very own conduct of disobedience and that the Court has reproached the disobedience in the strongest terms by imprisoning the contemnor. Contempt of Court is a serious matter and an applicant convicted and sentenced for that offence must establish a strong case that shows exceptional circumstances exist that justify bail. Disobedience of a Court order is a direct challenge to the authority of the Court and an affront to the administration of justice through the Courts. Although grant of bail pending appeal may not to be regarded as an exercise in leniency, bail is considered less strenuous than imprisonment and one that allows an convicted person to be free from detention. The fact that the grant of bail will result in halting the enforcement of the order for imprisonment that is lawfully imposed on the applicant from taking its normal course, is reason enough for a Court or a Judge deciding a bail application to give serious consideration to whether such an applicant should be allowed out on bail pending his appeal. For the grant of bail as a matter of course or almost wily nilly for all manner of reasons is sure to produce seemingly conflicting responses from other court users and the public as to whether the Courts are serious about the orders they issue and whether Court orders are meant to be strictly obeyed. As a result, the Court’s authority to punish offenders for contempt and public confidence and respect in the administration of justice is weakened or diminished.
    
36. These matters to my mind are important considerations that are ingrained in the notion of the “interest of justice” and matters a court determining a bail application pending appeal against conviction and sentence for contempt should take into account in exercising its discretion.
    
37. The applicant relies on the high prospect of success of the appeal and the short period of incarceration as militating in favor of grant of bail. I have already determined the point on the prospect of success of the appeal. With regard to the short period of imprisonment and the delay in the determination of the appeal, it is submitted by Mr Daugl that it is not in the interest of justice for the applicant to be incarcerated and serve his term before the appeal is heard and determined. Further if the appeal were successful, the applicant‘s detention would be unlawful.
    
38. Mr Wadau submits the applicant is incarcerated lawfully and the applicant should not waste time in preparing and prosecuting the appeal. He submits it is in the interest of justice that the applicant serves his term whilst awaiting his appeal because contempt is a very serious matter. In recent times the disobedience of court orders has become increasingly prevalent and it continues to rise with people committing the offence with total impunity. Offenders of all walks of life deserve equal treatment. A clear message should be sent by requiring those convicted to serve their time in jail whilst awaiting their appeal.
    
39. I accept Mr Wadau’s observations with regard to the increasing instances of disobedience of Court orders committed by persons of all walks of life, especially those that are reasonably acquainted and well versed with the Court process who are increasingly using their knowledge and skills to defy Court orders. The interest of justice is not best served by escaping punishment; the answer lies in expediting the appeal so that waiting time in jail is cut short. Under present judicial case management system and practices in place, provided appeal documentation is prepared in short time, a special fixture for the hearing of the appeal can be allocated by the Supreme Court Listings Judge and the appeal heard and determined with due expediency. The answer to the question “what is the interest of justice at stake here” lies in expediting preparation, hearing and determination of the appeal in the quickest possible time.
    

Totality of circumstances constituting exceptional circumstances

40. The above matters can also be considered circumstances alongside the other matters raised on his behalf that stand in the applicant’s favour. Those matters include the applicant’s good educational history and work background, good standing in the community, his stable family and concern for his family welfare and the like. In my view, such of those personal attributes and standing in the community are the very reasons that should be applied to enhance one’s understanding of the importance of Court orders and their duty to obey it. A conviction for contempt of a person of such standing is a clear indictment that those attributes have been put to wrong use to evade or defy Court orders. As a result the weight to be attached to those circumstances personal to the accused that stand to his credit is significantly reduced or diminished.
    
41. Finally, if the applicant were successful in the appeal, the interest of justice may be more appropriately served in an action for damages that he may choose to bring.
    

Summary and conclusions

42. In all the circumstances, I am not satisfied that exceptional circumstances exist for bail to be granted under any of the grounds and circumstances relied upon by the applicant taken individually or collectively.
    

Orders

43. The following orders are issued:
    
    • (1) The application for bail pending appeal is refused.
    • (2) A Certificate of Refusal of bail (to which is attached a copy of this ruling) shall be issued forthwith.
    • (3) The costs of the application shall be in the cause of the substantive appeal.
      

_____________________________________________________
Napu & Co Lawyers: Lawyer for the Appellants/Applicants
Young Wadau Lawyers: Lawyer for the Respondent